U.S. opposes Texas election maps

Posted Wed, December 28th, 2011 6:49 pm by Lyle Denniston

The Obama Administration on Wednesday afternoon urged the Supreme Court not to allow Texas to use the election district maps drawn up by its state legislature, arguing that if time is too short to draw up new maps, the “interim” redistricting plans of a federal court should be used for the 2012 elections even though those are flawed in some respects. The friend-of-Court brief filed by the U.S. Solicitor General’s office is here.

The Administration takes the position that two of the legislature’s maps — for seats in the state house and for the state’s congressional delegation in the U.S. House of Representatives — are illegal because they discriminate against minority voters. “Both plans,” the brief told the Court Wednesday, “bore indicia of discriminatory purpose” against minorities in the state. The government does not object to the state’s map for election to the state senate, although it noted that minority groups do oppose that plan, too.

When Texas filed its opening brief in the Supreme Court a week ago, it said there was no time to draw up new redistricting boundaries, so the Court should order into effect for next year’s elections the maps drafted by the state legislature earlier this year, even though those have not gained any approval — as federal voting rights law requires — in Washington. The Administration’s brief directly opposed that request, arguing that a state such as Texas, required to get preclearance in Washington for any change in any election method, may not use any change until it has gained clearance. (The preclearance requirement is imposed on a number of states, mostly in the South, that formerly had a history of racial bias in their voting laws. Texas has been covered by the Voting Rights Act’s Section 5 since 1975.)

When a federal District Court outside of Washington has a challenge before it to an election change from a state such as Texas, the Solicitor General contended, that court does not examine its validity but rather has to block its use if it has not been precleared either by a federal District Court in Washington or by the Justice Department. Thus, the brief argued, a three-judge District Court in San Antonio — faced with six lawsuits challenging the legality of the Texas maps under another part of the Voting Rights Act (Section 2) — properly barred Texas from using the new redistricting plans until they have official approval, and then drew up its own “interim” maps.

Texas should not be allowed to use its own maps in 2012, the Administration contended, even on an interim basis. “There is no basis,” it argued, “for allowing any temporary circumvention of the preclearance requirement, much less one of the magnitude [that Texas] seek[s].”

If the Court were to find that it must choose between the maps created by the Texas legislature and the “interim” maps drawn by the San Antonio court, the new brief said, it should choose the court-ordered plans. “Even if the court-drawn plans may — pending further explanation — insufficiently adhere to state redistricting principles in certain respects, those plans are preferable to ones whose very use would contravene Section 5’s preclearance regime and whose content violates Section 5 in purpose and effect.”

In examining the court-ordered plans, the government brief contended that the three-judge panel in San Antonio “should have explained further certain aspects of its interim [state] house and congressional plans.” For the state house plan, it added, there should have been more explanation of a decision to add three new districts in which minority voters have an ability to elect candidates of their choice, an addition that led the District Court to restore all 50 such districts that Texas had used in prior elections. Texas has contended that restoring all of those districts violated a state districting requirement to respect county lines.

Because of Texas’s rapid growth in population in the past decade, particularly among its Hispanic population, the District Court had to devise plans for the election of 36 members of the U.S. House — up four from 2000. The brief said that the District Court “should have given additional explanation of its reasons for drawing two of the state’s four new seats as ability-to-elect districts while also restoring all of the pre-existing ability-to-elect districts.”

Finally, the government contended, the District Court has failed to make necessary factual findings about how different minority groups, any one of which lacks a majority in a district, tend to vote together in an electoral coalition sufficiently to give them that opportunity in a designated district or districts. Such coalition districts are allowed under federal law, the brief said, contradicting Texas’s argument that they are forbidden.

Those imperfections in the District Court’s maps, the government lawyers asserted, can be addressed by the District Court on remand of the case by the Supreme Court.

The government filing argued that, if Texas had asked the Justice Department instead of the federal District Court in Washington to approve its new map for election to the state senate seats, the Department could have approved that map, allowing Texas to now use it. Instead, it added, the state chose to use the more extended and complex process of seeking clearance in the District Court in Washington.

At the end of its brief, the Administration urged the Court, when it rules, to uphold the District Court order so far as it created a new map for state senate seats, but to vacate the orders dealing with the maps for the state legislature and for congressional seats, and tell the District Court to explain further what it had done. As an alternative, however, it suggested that the Justices uphold all of the District Court’s orders. Even if the court-drawn plans are in some ways imperfect, the brief argued, they are preferable to illegal plans.

The two sides in the case are to file their reply briefs simultaneously on January 3. The Court has scheduled one hour of oral argument for the afternoon of January 9, after the Justices return from their holiday recess. In the ongoing case in the District Court in Washington, considering whether to clear the Texas maps under Section 5, a trial is scheduled to begin on January 17. Whatever maps are ultimately used will be in force for the state’s primary election, now scheduled for April 3, unless the court cases make it necessary to delay it again; it has been postponed once, from March 6.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

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